Friday, February 15, 2013

"e-Papers, please": Most Americans live in a Fourth Amendment-free zone (yes, really)

One thing I find particularly loathsome about the political polarization of America these days is the gross hypocrisy that results when one side that would normally oppose something will support it because it is their side imposing it, but then turn around and scream bloody murder about it if the other side does the same.

So when I read about the 100-mile "Constitution-free zone" at a right-wing website, I first assumed it was yet another one of those things where what really happened was being exaggerated, distorted, or simply lied about, as about ninety-five percent of them are, in order to agitate the believe-it-before-they-even-see-it masses.

But no such luck this time. As usual, I looked into this egregious claim before concluding it was yet another bogus effort to whip up readers into a frothing Obama-bashing frenzy, but I discovered that, apparently, the Obama administration's Department of Homeland Security really was suggesting that authorities be able to search electronic devices of people even without suspicion up to 100 miles from entry into the country, which it is very loosely calling "the border." That covers two in three people in the United States, including yours truly in Hawaii.

Rather than an Obama-bashing right-wing website (which is what you'll mostly get in a search for "100 mile zone department of homeland security"), I decided to put a bit of trust in this from Wired:
The Department of Homeland Security’s civil rights watchdog has concluded that travelers along the nation’s borders may have their electronics seized and the contents of those devices examined for any reason whatsoever — all in the name of national security.

The DHS, which secures the nation’s border, in 2009 announced that it would conduct a “Civil Liberties Impact Assessment” of its suspicionless search-and-seizure policy pertaining to electronic devices “within 120 days.” More than three years later, the DHS office of Civil Rights and Civil Liberties published a two-page executive summary of its findings.

“We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits,” the executive summary said. [bold-faced emphasis mine]

The memo highlights the friction between today’s reality that electronic devices have become virtual extensions of ourselves housing everything from e-mail to instant-message chats to photos and our papers and effects — juxtaposed against the government’s stated quest for national security.

The President George W. Bush administration first announced the suspicionless, electronics search rules in 2008. The President Barack Obama administration followed up with virtually the same rules a year later. Between 2008 and 2010, 6,500 persons had their electronic devices searched along the U.S. border, according to DHS data.
Got that? Denying their ability to search without reasonable suspicion harms their operations without providing any real benefit to our own civil rights or civil liberties. (Says who?!)

Wired goes on to explain that "according to legal precedent, the Fourth Amendment... does not apply along the border." Fine, except that the DHS has declared that "the border" stretches 100 miles inland from where the country actually begins (or ends, depending on viewpoint). Hence the American Civil Liberties Union graphic up above.

Got that? It's inconvenient for authorities to respect the Fourth Amendment rights along the border, and the border stretches a hundred miles inland, engulfing cities that are home to around 200 million people.

Just so we're clear, the Fourth Amendment (that's the privacy one, for those of you who had senioritis in high school Civics class), reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
That a person's iPhone, camera, computer, etc., is part of their "papers and effects" is far clearer than what a "well-regulated militia" is.

Now, I'm a believer that there is a real threat from terrorists both foreign and domestic and that we need to take that threat seriously, but I don't believe we need to give the government carte blanche to violate our civil rights in order to meet the threat. That represents two things: a deplorable and dangerous lack of creativity and effectiveness, and an immense potential for abuse.

What also bothers me about this (and this goes back to my earlier comment about hypocrisy) is that people are getting up in arms about this now when it has been an issue since the Bush administration. Kudos to the ACLU, which has been riled up about it under two different presidents (the above link is from October 2008), as they should be.

But the likes of WND are only getting on board now because it is a stick with which to try to beat down Obama; most of them likely voted for George W. Bush twice. (Not to mention that the ACLU is an organization that is constantly in the sights of the right, even when the ACLU defends folks like Rush Limbaugh.)

And on the other side, I expect (and I'll be so happy if I'm wrong) that those on the left who would normally be up in arms about this are going to be a bit quieter and more measured because they don't want to criticize Obama too harshly. (A little like we've seen with the drone program.)

Where are the moral compasses in our country today? God help us if I'm the only one in the middle or the left making a stink out of this.

Someone needs to take this through the courts so that DHS's fiat can be declared unconstitutional.

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